Citation Nr: 9913853
Decision Date: 05/20/99 Archive Date: 05/26/99
DOCKET NO. 95-42 448 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUES
1. Entitlement to service connection for asbestosis.
2. Entitlement to service connection for degenerative disc
disease (DDD) with degenerative joint disease (DJD) at L5-S1
and spondylosis.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
G. Strommen, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 17, 1945, to
August 15, 1945, in the merchant marines.
This case comes before the Board of Veterans' Appeals (Board)
from a rating decision rendered in May 1995, in which the
Atlanta, Georgia, Regional Office (RO) of the Department of
Veterans Affairs (VA) denied the veteran's claims of
entitlement to service connection for asbestosis and DDD with
DJD of L5-S1 and spondylosis. The veteran subsequently
perfected an appeal of that decision. A hearing on this
claim was held in Atlanta, Georgia, on December 9, 1998,
before Jeff Martin, who is a member of the Board and was
designated by the chairman to conduct that hearing, pursuant
to 38 U.S.C.A. § 7102(b) (West 1991).
FINDINGS OF FACT
1. The veteran has been currently diagnosed with asbestosis
and DDD with DJD of L5-S1 and spondylosis.
2. There is no competent evidence of record relating the
veteran's asbestosis and DDD with DJD of L5-S1 and
spondylosis to his period of active service.
CONCLUSION OF LAW
The claims of entitlement to service connection for
asbestosis and DDD with DJD of L5-S1 and spondylosis are not
well-grounded. 38 U.S.C.A. § 5107 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The threshold question that must be resolved with regard to a
claim is whether the veteran has met his initial obligation
of submitting evidence of a well-grounded claim. See
38 U.S.C.A. § 5107(a); Anderson v. Brown, 9 Vet. App. 542,
545 (1996); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd.
78 F.3d 604 (Fed. Cir. 1996) (Table). A well-grounded claim
is "a plausible claim, one which is meritorious on its own
or capable of substantiation. Such a claim need not be
conclusive but only possible to satisfy the initial burden of
[§ 5107(a)]" Murphy v. Derwinski, 1 Vet. App. 78, 81
(1990). "The quality and quantity of the evidence required
to meet this statutory burden of necessity will depend upon
the issue presented by the claim." Grottveit v. Brown, 5
Vet. App. 91, 92-93 (1993).
Where the determinative issue involves medical causation or a
medical diagnosis, competent medical evidence to the effect
that the claim is "plausible" is generally required. Id.
at 93. In order for a claim to be well-grounded, there must
be competent evidence of a current disability as provided by
a medical diagnosis; incurrence or aggravation of a disease
or injury in service as provided by medical or in certain
circumstances, lay evidence; and medical evidence of a nexus
between the in-service injury or disease and the current
disability. Caluza v. Brown, 7 Vet. App. 498, 506 (1998),
aff'd. 78 F.3d 604 (Fed. Cir. 1996) (Table).
In addition, combat veterans may use lay testimony as
acceptable proof of "in-service incurrence or aggravation of
an injury or disease, if consistent with the circumstances,
conditions, or hardships of such service, notwithstanding the
fact that there is no official record of such incurrence or
aggravation in such service." 38 U.S.C.A. § 1154(b) (West
1991). However, in the present case, there is no evidence
that the veteran was engaged in combat. His 28 days of
active service were in the merchant marines on a cargo
vessel, so this provision does not apply to him.
For the reasons discussed below, the Board finds that the
appellant's claim of entitlement to service connection for
asbestosis and DDD with DJD of L5-S1 and spondylosis are not
well grounded. Although the RO did not specifically state
that it denied the appellant's claims on the basis that they
were not well grounded, the Board concludes that this was not
prejudicial to the appellant. See Edenfield v. Brown, 8 Vet.
App 384 (1995) (en banc) (when the Board decision disallowed
a claim on the merits where the United States Court of
Appeals for Veterans Claims (known as the United States Court
of Veterans Appeals prior to March 1, 1999)) (hereinafter
"Court") finds the claim to be not well grounded, the
appropriate remedy is to affirm, rather than vacate, the
Board's decision, on the basis of nonprejudicial error). The
Board, therefore, concludes that denying the appeal on these
issues because the claims are not well grounded is not
prejudicial to the appellant. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
Where a claim is not well grounded it is incomplete and no
duty to assist attaches. 38 U.S.C.A. § 5103(a) (West 1991);
McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). However,
where a claimant puts the VA on notice of the existence of
evidence which would make the claim well grounded, the VA is
obliged under 38 U.S.C.A. § 5103(a) (West 1991), to advise
the claimant of the evidence needed to complete his
application. Robinette v. Brown, 8 Vet. App. 69, 77-80
(1995). Unlike the situation in Robinette, the appellant has
not put the VA on notice of the existence of any specific,
particular piece of evidence that, if submitted, might make
the claim well grounded.
1. Entitlement to service connection for asbestosis.
The Court has pointed out that although there are no
statutory or regulatory provisions specifically addressing
the matter of service connection for asbestosis, the VA has
issued a circular which provides guidelines for developing
such claims. McGinty v. Brown, 4 Vet. App. 428 (1993).
Further, the Court has indicated that in the absence of any
statutory or regulatory guidance, these administrative
guidelines must be followed. Ashford v. Brown, 10 Vet. App.
120 (1997); Ennis v. Brown, 4 Vet. App. 523 (1993). The
guidelines, which are now contained in VA ADJUDICATION PROCEDURE
MANUAL, M21-1, Part VI, 7.21 (Jan. 31, 1997) (hereinafter
"MANUAL"), require that the RO "determine whether or not
military records demonstrate evidence of asbestos exposure in
service." MANUAL, 7.21(d)(1). In addition, whether or not
there is pre-service and/or post-service evidence of asbestos
exposure must be ascertained, and a "determination must then
be made as to the relationship between asbestos exposure and
the claimed diseases, keeping in mind the latency and
exposure information noted above," as well as the doctrine
of reasonable doubt. Id.
In the present case, the veteran's DD 214 shows that he
served on active duty in the merchant marines from July 17,
1945 until August 15, 1945 aboard the vessel SINNET. His
occupation is identified as "OS" which the veteran has
testified as being "ordinary seaman." The veteran has also
testified that he was in the merchant marines for at least a
year after August 15, 1945. However, current VA regulations
do not recognize merchant marine service after August 15,
1945, as active service for compensation purposes. 38 C.F.R.
§ 3.7(x)(15) (1998). Accordingly, despite the veteran's
additional service as a merchant marine, for purposes of his
claim for benefits, his only recognized service is his 28
days identified above.
Attempts to obtain the veteran's service records from either
the United States Coast Guard or the Director of Public
Health Service Data Center were unsuccessful, and no
documentary evidence beyond his DD 214, regarding the
veteran's specific service are of record. The veteran
submitted evidence from the United States Department of
Transportation Maritime Division stating that the SINNET was
a United States flagged cargo vessel built by J.A. Jones
Construction Company of Brunswick, Georgia, and completed on
July 17, 1945. It was operated during World War Two from
July 17, 1945, to July 23, 1946. Accompanying this statement
the veteran submitted excerpts from depositions of persons
who worked at the J.A. Jones Shipyard in Brunswick, Georgia,
(formerly the Brunswick Shipyard) during the period when the
SINNET was built. One of the deposed, R. Campbell, testified
that at that time asbestos products were used in the
insulation and other parts of the ships built at the yard.
The veteran supplemented this evidence with his own
statements and testimony asserting that during his time
aboard the SINNET his job duties included sweeping up,
repairing piping covered with insulation, and chipping paint.
He also stated that he spent 18 of every 24 hours aboard ship
below deck where a fine dust used to cover things much of the
time.
Evidence of record reveals that the veteran worked as a
boilermaker for approximately 40 years after discharge. He
has testified that he was exposed to asbestos while working
as a boilermaker, but testified at a February 1997 hearing
before the RO that he was in a supervisory position which
limited his exposure. On his May 1984 application for Social
Security Administration (SSA) benefits the veteran indicated
that he worked as a craftsman until 1976, a supervisor from
1976 to 1982, and a craftsman again from 1982 until 1984,
when he became disabled. In additional statements of record
the veteran notes that he was laid off in 1982 and had to do
whatever work he could find until he became totally disabled.
He described his duties as welding and working with pneumatic
tools until he became a supervisor. In the SSA records and
in other statements and testimony of record, the veteran
acknowledges post-service exposure, but asserts that his
initial exposure occurred in service and that once exposed,
the fibers do not leave but stay in the lungs. Assuming the
veteran's statements to be credible, as required for well-
groundedness purposes, and sufficient to provide competent
evidence of in-service exposure, this would only fulfill one
of the three prongs of the well-grounded claim test. Nolen
v. West, No. 96-1756 (U.S. Vet. App. Apr. 28, 1999). The
veteran has still not presented competent medical evidence of
a nexus relating any current disability to his recognized 28
day exposure in service. Id.
The medical evidence shows that the veteran has a current
diagnosis of asbestosis, as confirmed in an August 1994 VA
compensation examination report, thus satisfying the
requirement of a current medical diagnosis. However, the
examiner, although diagnosing asbestosis, did not indicate
the basis for his exposure to asbestos. Further review of
the record shows that there is no medical evidence relating
the veteran's asbestosis to his 28 days of active service.
Private medical records from Drs. Inman and Zoret reveal that
the veteran was first shown to have pleural calcifications in
his lung base in August 1980, subsequent regular x-ray
reports confirmed these findings, but the records do not
indicate the source of his asbestos exposure other than a
notation that he worked as a boilermaker for 40 years with no
other work. In March 1995 the veteran was seen be Dr. H.
Levy regarding his lung condition. In a questionnaire
submitted at this time, the veteran identified one and a half
years of severe dust exposure while in the maritime service,
and 40 years as a boilermaker with dust and fume exposure
ranging from mild to severe. Dr. Levy diagnosed early
parenchymal process, and submitted a June 1995 statement
saying, "[the veteran] has requested a letter from me
stating that he was exposed to asbestos in the past and that
once asbestos exposure takes place the asbestos particles are
not removed from the lung and this represents a permanent
condition." Dr. Levy makes no specific indication of the
source of the veteran's asbestos exposure. In January 1997
Dr. Inman submitted a statement averring that his records
were transferred to Dr. Zoret in March 1990. His only
recollection about the veteran's medical treatment were
complaints about his back and legs and suspected asbestosis
in the 1980's.
Records submitted in connection with the veteran's claim for
SSA disability benefits show that he was treated at Glynn
Brunswick Memorial Hospital on several occasions, mostly for
genito-urinary problems with occasional chest x-rays
indicating pleural plaques but with no discussion of the
source of these findings. In a June 1984 evaluation, a Dr.
Proctor noted that the veteran reported that he was exposed
to asbestos from his work as a boilermaker for approximately
40 years. There is no mention of his alleged in-service
exposure. Dr. Proctor diagnosed doubtful asbestosis or
significant lung disease, noting that the veteran may have
some early asbestosis. No specific discussion of a source
for exposure was made. None of the other medical records
submitted specifically address the veteran's lung condition
or any possible source for his asbestos exposure.
This evidence does not present competent medical evidence of
a nexus between his current disability of asbestosis and his
alleged 28 days of service exposure. "At best, the
physicians' statements of record provide a nexus only between
the veteran's asbestosis and his [post-service] employment .
. ." Nolen v. West, No. 96-1756 (U.S. Vet. App. Apr. 28,
1999). To the extent the veteran is attempting to establish
the missing medical nexus through his own statements and
testimony, he is not competent to do so. Medical diagnosis
and causation involve questions that are beyond the range of
common experience and common knowledge and require the
special knowledge and experience of a trained physician.
Ruiz v. Gober, 10 Vet. App. 352, 356 (1997); Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown,
5 Vet. App. 91, 93 (1993).
Consequently, based on the absence of a medical nexus between
the veteran's alleged exposure to asbestos in service and his
current diagnosis of asbestosis, the Board finds that his
claim of entitlement to service connection for asbestosis is
denied as not well-grounded.
2. Entitlement to service connection for DDD with DJD of L5-
S1 and spondylosis.
The veteran contends that he injured his back while on active
service when he fell approximately 12 feet off a boom onto
the deck of the SINNET, the ship he was working on at the
time of the accident. As noted above, the only recognized
service that the veteran has is 28 days from July 17, 1945,
to August 15, 1945. None of the veteran's statements
regarding his injury indicate whether it occurred prior to
August 15, 1945, thus, even presuming his statements to be
credible, they do not establish that his injury occurred
during his recognized period of active service. However,
even assuming, without deciding, that such is the case, his
claim is not well-grounded, because he has failed to provide
medical evidence of a nexus between his current DDD with DJD
of L5-S1 and spondylosis and his asserted in-service injury.
Caluza v. Brown, 7 Vet. App. 498, 506 (1998), aff'd. 78 F.3d
604 (Fed. Cir. 1996) (Table).
In the present case, as noted above, there are no service
medical records available despite the RO's attempts to obtain
any available records. Available records merely establish
that the veteran was aboard the SINNET as an "OS" for the
applicable period from July 17, 1945, to August 15, 1945.
Post-service medical records note the first medical treatment
for the veteran's back to be in July 1956, in the treatment
records of Drs. Inman and Zoret. These records cover the
period from 1956 to 1986, and reveal sporadic treatment for
low back complaints, with no discussion of etiology of these
problems. In his January 1997 letter referenced above, Dr.
Inman states that the veteran was treated for "complaints
referable to his back and legs" in the 1980's. No mention
is made of etiology.
In his June 1984 examination report, Dr. Proctor, notes that
the veteran reported that his job involved a lot of climbing,
lifting and welding steel. The veteran also reported low
back pain for about 20 years primarily when he bends over or
picks something up. The only accident or injury he noted was
when a piece of steel knocked his legs out from under him and
cut the tendons in his heel to some extent, with no current
residuals. No other accident or injury was noted. Dr.
Proctor diagnosed chronic low back pain by history.
In October 1984 Dr. Cooper, a chiropractor, submitted a
statement asserting that he had seen the veteran for 20 years
for neck and back injuries, "not due to an accident, strain
or obvious injury but because of an unstable condition of the
muscles and ligaments of his back and neck." He goes on to
state that, "[t]he above condition was in my opinion caused
by very hard work in all types of unfavorable weather." In
the medical history of an August 1980 discharge summary the
examiner notes that the veteran has had severe low back pain
and stiffness with no history of injury. None of the records
submitted with the veteran's SSA application note his
subsequently identified injury aboard the SINNET.
In an August 1994 VA compensation examination, the veteran
reported that he slipped and fell while on a ship. After
examination, the examiner diagnosed him with DDD with DJD of
L5-S1 and spondylosis, without reference to causation. This
was the first time the veteran mentioned suffering an injury
while in the merchant marines. He testified in January 1997
and again in December 1998 that he injured his back when he
fell off a boom while aboard the SINNET.
None of the other medical records submitted specifically
address the veteran's low back disorder or any possible cause
for this disorder. After reviewing the medical evidence of
record, the Board concludes that this evidence does not
present competent medical evidence of a nexus between his
current low back disability, DDD with DJD of L5-S1 and
spondylosis, and his alleged 28 days of service aboard the
SINNET, even assuming an injury occurred during this
timeframe. At best, the physicians' statements of record
provide a nexus only between the veteran's post-service
employment and his low back disorder, as noted by Dr.
Cooper's October 1984 statement.
To the extent the veteran is attempting to establish the
missing medical nexus through his own statements and
testimony, he is not competent to do so. Medical diagnosis
and causation involve questions that are beyond the range of
common experience and common knowledge and require the
special knowledge and experience of a trained physician.
Ruiz v. Gober, 10 Vet. App. 352, 356 (1997); Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992); Grottveit v. Brown,
5 Vet. App. 91, 93 (1993).
Consequently, based on the absence of a medical nexus between
the veteran's period of active service and his current low
back disability, the Board finds that his claim of
entitlement to service connection for DDD with DJD of L5-S1
and spondylosis is denied as not well-grounded.
ORDER
Entitlement to service connection for asbestosis and DDD with
DJD of L5-S1 and spondylosis is denied.
JEFF MARTIN
Member, Board of Veterans' Appeals